Planes, Trains . . . and Drones?

Unmanned aircraft systems (“UAS”), more widely known as drones, have been a hot discussion topic in recent years. Last spring, Penn State hosted a program called “World on Trial” which examined the legality of the use of UAS by the U.S. Government to target suspected terrorists. Critics have argued the military’s use of drones violates international humanitarian law, human rights law, and domestic U.S. law.

Given technological advances and decreasing costs, many companies are now seeking commercial applications of UAS. Corporations, such as Amazon, view the technology as an innovative customer delivery service, or as an opportunity to increase their profits or market share. Real estate firms are using drones to more efficiently survey property. An article in The Atlantic proclaims that “developing countries are skipping over roads and going straight to drones for providing healthcare,” as companies deliver medications and aid to rural clinics in Rwanda. [1]  Even Disney, which has achieved FAA-approved no-fly zones over its American theme parks, wants to fly drones.[2]

More specifically, the Washington Post discussed the potential benefits UAS may bring to rail freight carriers by allowing for the remote inspection of railroad infrastructure.[3] In 2015, the FAA granted BNSF Railway permission to use drones to inspect parts of its 32,500 miles of track. According to the Association of American Railroads, Union Pacific has also secured FAA approval for the use of drones.[4] Using drones equipped with high-definition cameras, safety inspectors may examine rail lines where dangerous weather conditions would otherwise keep on-foot personnel away.

In Europe, PKP Cargo, a Polish freight carrier, uses drones to patrol its railways and protect its cargo.[5] The company believes that drones have been responsible for a 44 percent reduction in thefts on the rail network since the program began in 2015.[6]

In the U.S., the Federal Aviation Administration has acknowledged railroads’ safety concerns in its rulemaking process. In its December 16, 2015 interim final rule requiring the registration and marking requirements for small unmanned aircraft, the FAA noted Union Pacific Railroad’s support for “other reasonable measures to encourage accountability and responsibility in small UAS operations including restrictions on any unauthorized commercial or recreational operations over certain safety-sensitive locations, such as railroad facilities.” Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78594, 78734 (Dec. 16, 2015) (to be codified at 14 CFR 47).

Domestic drone regulation emerged after Congress passed the FAA Modernization and Reform Act of 2012, directing the U.S Department of Transportation and the FAA to integrate UAS into the domestic airspace. In its proposed rule, the FAA imposed some of the following operational requirements for small UAS:

  • to be between 0.55 lbs and 55 lbs
  • daylight-only operation
  • maximum altitude of 500 feet
  • maximum airspeed of 100 mph
  • visual line-of-sight requirement
  • minimum weather visibility of 3 miles from control station
  • aircraft marking and registration requirements.

Most recently, on February 24, 2016, the FAA established an aviation rulemaking committee to develop operating standards for micro UAS, defined as UAS weighing no more than 4.4 pounds and “constructed of frangible materials that break, distort or yield on impact.” Based on the Committee’s findings, the FAA will propose rules for these UAS so that they may be operated safely over people while minimizing potential hazards. The committee will send a report to the FAA Administrator on April 1, 2016. Stay tuned for the Committee’s recommendations: this is a rapidly evolving area of the law, as the FAA attempts to balance innovation and economic interests with the safety of people and property.

 

 Tim Joseph is a 3L and a Senior Editor for the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


 

[1] Olga Khazan. The Atlantic “A Drone to Save the World”. Apr. 4, 2015 http://www.theatlantic.com/technology/archive/2016/04/a-drone-to-save-the-world/476592/.

[2]Matt McFarland; “Disney Loved Its No-Fly-Zone Until It Wanted to Fly Its Own Drones” The Washington Post; Jan. 22, 2016. https://www.washingtonpost.com/news/innovations/wp/2016/01/22/disney-loved-its-no-fly-zone-until-it-wanted-to-fly-its-own-drones

[3] Brian Fung. The Washington Post. The future of train safety lies in drones. May 13, 2015. https://www.washingtonpost.com/news/the-switch/wp/2015/05/13/how-drones-could-make-train-travel-safer.

[4]Association of American Railroads. 2016 State of the Industry Reports, “Aerial Drones Provide Rail Safety from the Sky.

[5] Global Rail News. “Security drones to be used by Polish rail freight operator. Sept. 2, 2015. http://www.globalrailnews.com/2015/09/02/security-drones-to-be-used-by-polish-rail-freight-operator.

[6] Id.

The U.S., Capital Punishment and the ICCPR

The United States has expressed reservations to Article 6, section 5 of the ICCPR,[1] stating that “the United States reserves the right, subject to Constitutional restraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.”[2]

Notably, the United States is not a party to the Second Optional Protocol to the International Covenant on Civil and Political Rights, the aim of which is the abolition of the death penalty. The rationale behind this reservation, according to the Foreign Relations Committee, is “the recent affirmation of U.S. policy toward capital punishment generally, and in particular the Supreme Court’s decision upholding state laws permitting the death penalty for crimes committed by juveniles aged 16 and 17.”[3]

Recent legal developments undermine the Committee’s rationale, however, and may warrant the reservation’s amendment. In 2005, the United States Supreme Court held the juvenile death penalty unconstitutional, as a violation of the Eighth Amendment’s proscription of cruel and unusual punishment.[4] The respondent was seventeen when he committed murder.[5] Previously, the Court had determined that “standards of decency [did] not permit the execution of any offender under the age of 16 at the time of the crime.”[6] Moreover, the Court cites to the “evolving standards of decency” as evidenced by the growing national consensus against the death penalty for juveniles.[7] The “objective indicia of consensus in this case” was the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books, and the consistency in the trend toward abolition of the practice.[8]

Notably, the Court discusses the ICCPR and other international treaties in its opinion, finding international consensus a factor in determining whether punishment is cruel and unusual.[9]

More recently, a federal judge in California held that the State’s death penalty system violated the Eighth Amendment.[10] Of the nine hundred individuals sentenced to death since 1978, only seventeen had completed federal habeas review and had been denied relief. Of those seventeen, each had been on death row for more than twenty-five years, and eight have been there for more than thirty years. The Court held California’s death penalty system to be arbitrary, determining that a death sentence in California is rather a “sentence of life imprisonment with the remote possibility of death ­– a sentence no rational legislature or jury could impose.”[11] Moreover the selection for execution served no penological purpose, but rather was determined by how quickly the inmate proceeded through the State’s post-conviction review process.[12]

Based on these two cases, it would seem the standards of decency and national consensus have evolved since the Committee recommended the reservation to Article 6. International pressure led by the Human Rights Committee may aid in the continuing push for the striking of this reservation.

 

Tim Joseph is a 3L and a Senior Editor for the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


 

[1] “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.” (ICCPR).

[2] United States of America. Reservations to the International Covenant on Civil and Political Rights. https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=IV~4&chapter=4&lang=en#EndDec.

[3] S. Exec. Rep. at 11, reprinted in 31 I.L.M. at 653.

[4] See Roper v. Simmons, 543 U.S. 551, 551 (2005).

[5] See id. at 556.

[6] See id. at 561 (citing Thompson v. Oklahoma, 487 U.S. 815, 818–838) (opinion of Stevens, J., joined by Brennan, Marshall and Blackmun, JJ.).

[7] Id. at 563–64.

[8] Id. at 567.

[9]Id. at 576 (“As respondent and a number of amici emphasize, Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18.”) United Nations Convention on the Rights of the Child, Art. 37, Nov. 20, 1989, 1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468-1470 (entered into force Sept. 2, 1990); Brief for Respondent 48; Brief for European Union et al. as Amici Curiae 12-13; Brief for President James Earl Carter, Jr., et al. as Amici Curiae 9; Brief for Former U. S. Diplomats Morton Abramowitz et al. as Amici Curiae 7; Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 13-14. No ratifying country has entered a reservation to the provision prohibiting the execution of juvenile offenders. Parallel prohibitions are contained in other significant international covenants. See ICCPR, Art. 6(5), 999 U. N. T. S., at 175 (prohibiting capital punishment for anyone under 18 at the time of offense) (signed and ratified by the United States subject to a reservation regarding Article 6(5), as noted, supra, at 567, 161 L. Ed. 2d, at 20); American Convention on Human Rights: Pact of San Jose, Costa Rica, Art. 4(5), Nov. 22, 1969, 1144 U. N. T. S. 146 (entered into force July 19, 1978) (same); African Charter on the Rights and Welfare of the Child, Art. 5(3), OAU Doc. CAB/LEG/24.9/49 (1990) (entered into force Nov. 29, 1999) (same).”).

[10] See Jones v. Chappell, 31 F. Supp.3d 1050 (C.D. Cal. 2014).

[11] Id. at 1062.

 [12]Id.

U.S. Compliance and the ICCPR

Modern democracy originated largely from the Lockean idea that people formed governments to preserve rights of life, liberty and property.[1] This idea that people were born with natural rights derived from natural law “heavily influenced the thinking of many of the founders of the early American republic.”[2] A belief that people have unalienable rights was used as justification for U.S. independence. The French Declaration of the Rights of Men and the American Bill of Rights addressed and enumerated critical civil rights, providing a vision for nations to be founded upon an ideal of individual liberty. Indeed, the Bill of Rights “established the legal foundation for the protection of human rights in the United States.”[3]

While the realities of eighteenth and nineteenth century America differed greatly from the rhetoric of individual liberty, these ideas sparked discussion and inspired domestic and international reform through early nongovernmental organizations.[4] Despite the mixed legacy of U.S. history concerning human rights as “a country whose practice did not always match its rhetoric,” there has existed a strong domestic tradition of advocacy for the protection of civil rights and civil liberties within the United States.[5]

While the numerous reservations, declarations and understandings undermine U.S. compliance with the Covenant, generally, modern democracies have a strong or growing tradition founded on civil liberties, and thus may be said to be generally in compliance with the ICCPR.

That being said, the Human Rights Committee finds the U.S. to be in violation of its treaty obligations under the Covenant.[6] Principally, the Committee finds the applicability of the Covenant at the national level to be of concern, citing factors that “considerably limit the legal reach and practical relevance of the Covenant, in violation of Art. 2.”[7]

The Committee also discusses issues within the criminal justice system including gross racial disparities within the prison system and racial profiling caused by the promulgation of “stop and frisk” practices by local police departments.[8]

Notably, the commission also expresses concern regarding targeted killings using unmanned vehicles, a practice discussed within Penn State University’s recent screening of World on Trial.[9] Specifically, the Committee mentions articles two, six, and fourteen in discussing its concern.[10]

The Committee remains concerned with the State party’s very broad approach to the definition and geographical scope of “armed conflict,” including the end of hostilities, the unclear interpretation of what constitutes an imminent threat,” who is a combatant or a civilian taking direct part in hostilities, the unclear position on the nexus that should exist between any particular use of lethal force outside areas of active hostilities, as well as the precautionary measures taken to avoid civilian casualties in practice (arts. 2, 6 and 14).[11]

Under the plain language of the ICCPR, the drone killings may constitute arbitrary deprivations of life without judicial oversight if they are found to fall outside the context of armed conflict. However, the Human Rights Committee has clarified that state parties must adhere to their treaty obligations and the ICCPR and humanitarian law are complementary. While many of the Committee’s criticisms have been discussed in context of the World on Trial, perhaps the most novel solution provided is the concept of a individual remedy for victims where a violation of the ICCPR has occurred, including the provisioning of adequate compensation and the establishment of “accountability mechanisms for victims of allegedly unlawful drone attacks who are not compensated by their government.”[12]

 

Tim Joseph is a 3L and a Senior Editor for the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


[1] Paul Gordon Lauren. A Human Rights Lens on U.S. History: Human Rights at Home and Human Rights Abroad, in Bringing Human Rights Home at 7.

[2] Id. at 10.

[3] Id. at 11.

[4] Id. (“The formation of the Society for the Relief of Free Negroes Unlawfully Held in Bonadage by the American Quaker and activist Anthony Benzenet and others . . . not only created perhaps the very first human rights nongovernmental organization . . . but in the process served as an example for Thomas Clarkson and other deeply committed campaigners in Britain to establish the much larger and more influential Society for Affecting the Abolition of the Slave Trade.”).

[5] Id. at 35.

[6] Human Rights Committee, Concluding observations on the fourth periodic report of the United States of America, Mar. 10–Mar. 24, 2014, U.N. Doc. CCPR/C/USA/CO/4 (Apr. 23, 2014).

[7] See id. “The Committee regrets that the State party continues to maintain the position that the Covenant does not apply with respect to individuals under its jurisdiction, but outside its territory, despite the interpretation to the contrary of article 2, paragraph 1, supported by the Committee’s established jurisprudence, the jurisprudence of the International Court of Justice and State practice. The Committee further notes that the State party has only limited avenues to ensure that state and local governments respect and implement the Covenant, and that its provisions have been declared to be non-self-executing at the time of ratification. Taken together, these elements considerably limit the legal reach and practical relevance of the Covenant (art. 2).”).

[8] See id. at 3–4.

[9] See id. at 4.

[10] See id.

[11] Id. at 5.

[12] Id. at 5.

A Brief History of the International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (“ICCPR”) “guarantees a broad spectrum of civil and political rights.”[1] While many Americans are aware of endogenous civil and political rights stemming from the Bill of Rights and the Anglo-American legal tradition, many citizens may not realize that the United States is a state party to the Covenant, which purports to recognize that these rights may be part of the “foundation of freedom, justice and peace in the world,” and derive from the inherent dignity of the human person.”[2]

It is difficult to imagine that World War II, a global conflict which caused “the deaths of perhaps sixty million human beings could ever possibly create, at the same time, new and unanticipated opportunities for the advancement of human rights. But it did.”[3] Franklin D. Roosevelt, in his 1941 State of the Union Address, claimed four fundamental freedoms existed “everywhere in the world”: the freedom of speech, the freedom of worship, the freedom from want, and the freedom from fear.[4] The statement that freedoms existed “everywhere in the world” is hallmark of the universality of these freedoms. Indeed, Roosevelt stated that this freedom was “no vision of a distant millennium,” but rather “a definite basis for a kind of world attainable in our time and generation.”[5]

Toward the end of World War II, in April 1945, delegates from the allied powers gathered in San Francisco for the founding conference of the United Nations.[6] The goal of this conference was to create an organization “to prevent future aggression, assure the stability of frontiers, and provide a means for resolving disputes among nations.”[7]

As noted by author Mary Ann Glendon, some delegates hoped the “new organization would concern itself with much more than collective security,” taking U.S. President Franklin Roosevelt’s “four freedoms” speech to heart.[8] Established powers such as the United States, the United Kingdom and the Soviet Union were resistant to accept a human rights–centric organization with binding legal authority.[9]

Author Paul Gordon Lauren discusses the Dumbarton Oaks meetings of the Great Powers and the general dissatisfaction of those who sought to realize Roosevelt’s ideal:

“The prominence of the Security Council, the diminution of the General Assembly, the emphasis on states rather than individuals, the absence of any provision at all about colonial empires, and the single mention of human rights buried in the text and confined to social and economic cooperation provoked shock, resentment and outrage.”[10]

The final draft of the United Nations Charter reflects a “notable departure from the Dumbarton Oaks proposals” and marks the shift of focus of international law from the nation state to the individual.[11] The United Nations Charter declares, inter alia, that the “peoples of the United Nations . . . determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, [and] in the equal rights of men and women of nations large and small.”[12]

The United Nations Commission on Human Rights was the first true international body empowered to promote all the human rights of all the world’s people.[13] Sixteen member states were represented at the first session of the Human Rights Commission on February 10, 1947, chaired by Eleanor Roosevelt.[14] Many of the discussions stemming out of the Human Rights Commission meetings formed the basis for later binding covenants.[15]

The Universal Declaration of Human Rights is not legally binding on states parties.[16] To codify the rights embodied in the UDHR, two treaties would be created: the International Covenant on Civil and Political Rights (“ICCPR”) and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”). These two documents would form the basis of the International Bill of Human Rights. In 1950, the General Assembly declared “the enjoyment of civil and political freedoms and of economic, social and cultural rights are interconnected and interdependent.”[17] The Human Rights Commission completed preparation of the draft of the ICCPR at its ninth and tenth sessions, in 1953 and 1954.[18]

On December 16, 1966, the United Nations General Assembly unanimously adopted the ICCPR.[19] The ICCPR took ten years to enter into force on March 23, 1976.[20] Currently, as of 2015, there are seventy-four signatories and one hundred sixty-eight parties to the Covenant.[21]

 

Tim Joseph is a 3L and a Senior Editor for the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


 

[1] International Convention on Civil and Political Rights, adopted 16 Dec. 1966, 999 U.N.T.S. 171 (entered into force 23 Mar. 1976), G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc A/6316 (1966); Senate Comm. on Foreign Relations, Report on the International Covenant on Civil and Political Rights, S. Exec. Rep. 23, 1 (102d Sess. 1992), reprinted in 31 I.L.M. 645 (1992).

[2] See id.

[3] Paul Gorden Lauren. The Evolution of International Human Rights: Visions Seen 137 (3d ed. 2011).

[4] Elizabeth Borgwardt, FDR’s Four Freedoms and Wartime Transformations in America’s Discourse of Rights, in Bringing Human Rights Home: A History of Human Rights in the United States 31 (Cynthia Soohoo et al. eds., 2008).

[5] Franklin Roosevelt, Address of 6 January 1941; Lauren at 139.

[6] Mary Ann Glendon. A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights 3 (2002).

 [7] Id at 10.

 [8] Id.

[9] Lauren at 166.

[10] Id.

[11] Id. at 184.

[12] Charter of the United Nations, Preamble.

[13] Howard Tolley, Jr. Decision-making at the United Nations Commission on Human Rights, 1979–82, 5 Human Rts Q. 27 (1983) (“previous international human rights activity had produced treaties banning singularly offensive practices, such as slavery, or protecting uniquely vulnerable groups, such as refugees or civilian victims of war.”).

[14] Glendon at 35.

[15] See id. at 84. (“The U.K. Foreign Office had submitted an incomplete covenant–covering only political and civil rights and without implementation measures–to the Human Rights Commission. Though not a major source for the Universal Declaration, this U.K. draft became influential in other contexts. Later it served as a basis for the 1966 UN International Covenant on Political and Civil Rights.”).

 [16] See id. (“A declaration by the UN General Assembly takes the form of a resolution that, like a congressional resolution, has no legal force of its own. Covenants, conventions, and treaties (more or less interchangeable terms) are agreements by which nations undertake legally binding obligations.”).

 [17] United Nations. “Fact Sheet No.2 (Rev.1), The International Bill of Human Rights http://www.ohchr.org/Documents/Publications/FactSheet2Rev.1en.pdf (1996). (Accessed: Apr. 9, 2015).

 [18] Id.

 [19] see 31 I.L.M. at 645.

 [20] Lauren at 243; see 31 I.L.M. at 645.

[21]United Nations Treaty Collection. Status as at: 09-04-2015 05:00:36 EDT. International Covenant on Civil and Political Rights, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en. (Accessed: Apr. 9, 2015).